United States of America v. Domonic McCarns

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOMONIC MCCARNS,
Defendant-Appellant.
Nos. 16-10410
17-10016
D.C. No.
2:08-cr-00116-KJM-5
MEMORANDUM*
Appeals from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted July 10, 2018
San Francisco, California
Before: GRABER and TALLMAN, Circuit Judges, and LEMELLE,** Senior
District Judge.
In an opinion filed concurrently with this unpublished memorandum
disposition, we addressed two issues raised on appeal and affirmed Domonic
McCarns’ conviction and sentence for conspiracy to commit mail fraud in violation
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Ivan L.R. Lemelle, Senior United States District Judge
for the Eastern District of Louisiana, sitting by designation.
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of 18 U.S.C. § 1349. We now resolve the remaining issues.
1. The district court did not plainly err when instructing the jury. The
elements of conspiracy and of mail fraud (the object of the conspiracy) were in
separate instructions. McCarns argues that this allowed the jury to convict him
without considering mail fraud’s mailing element. See 18 U.S.C. § 1341.
McCarns has not shown that his substantial rights were affected because there is
“strong and convincing evidence that the prosecution has adequately proved the
missing element of the crime.” United States v. Conti, 804 F.3d 977, 981-83 (9th
Cir. 2015) (internal quotation marks omitted). For example, McCarns stipulated
that, when a home was sold as part of the conspiracy, a copy of the deed was
mailed via the United States Postal Service. The Government also admitted
e-mails in which McCarns discussed using the mails in furtherance of the
conspiracy.
Nor was there a constructive amendment of the indictment. McCarns’
constructive amendment argument simply restates, in different terms, his previous
argument that the jury instructions omitted an essential element.
2. There was sufficient evidence of McCarns’ identity. A defense witness
who worked with McCarns identified him in court. McCarns stipulated to writing
a series of e-mails that discussed the conspiracy. McCarns’ co-defendants testified
about working with him and expressed no concern that the wrong man was on trial.

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Viewing this evidence in the light most favorable to the prosecution, a rational trier
of fact could have found McCarns’ identity beyond a reasonable doubt. See United
States v. Alexander, 48 F.3d 1477, 1489-91 (9th Cir. 1995).
3. The district court did not abuse its discretion when it denied McCarns’
motion to sever. We reverse the denial of a motion to sever when “a joint trial was
so manifestly prejudicial as to require the trial judge to exercise his discretion in
but one way, by ordering a separate trial.” United States v. Sullivan, 522 F.3d 967,
981 (9th Cir. 2008) (per curiam) (internal quotation marks omitted). That was not
the case here. “A joint trial is particularly appropriate where,” as here, “the co-
defendants are charged with conspiracy.” United States v. Barragan, 871 F.3d
689, 701 (9th Cir. 2017) (internal quotation marks omitted), cert. denied, 138 S.
Ct. 1565 and 138 S. Ct. 1572 (2018). The limiting instructions used at trial, further
weigh against severance “because the prejudicial effects of the evidence of
codefendants are neutralized.” United States v. Stinson, 647 F.3d 1196, 1205 (9th
Cir. 2011) (internal quotation marks omitted).
4. The district court properly calculated the loss. The court sufficiently
explained its conclusion that McCarns was aware of the full scope of the
conspiracy based on his active role, the duration of his involvement, and his
physical location at headquarters. See United States v. Blitz, 151 F.3d 1002, 1012-
14 (9th Cir. 1998). McCarns knew that lenders were involved in each of the

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transactions he closed; lenders’ losses were therefore reasonably foreseeable. See
United States v. Treadwell, 593 F.3d 990, 1004-05 (9th Cir. 2010); Blitz, 151 F.3d
at 1012-14.
5. The vulnerable victim adjustment was warranted. Victims of fraud can
be “vulnerable victims” when they are targeted because of their poor credit
histories. See United States v. Peters, 962 F.2d 1410, 1415-18 (9th Cir. 1992).
The vulnerable victim adjustment was appropriate here because McCarns targeted
homeowners who were in financial distress and could not make payments on their
existing mortgages. See id.
6. McCarns’ below-Guidelines sentence was substantively reasonable.
AFFIRMED.

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